In November, 2005, the plaintiff was terminated from her position as Assistant Vice President of Deutsche Bank. In March, 2006, the plaintiff commenced an action against Deutsche Bank, Lori Bryant-Chin, John Robbins and Philip Gallo. In an order dated July 11, 2006, this court granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(7). This court found that the plaintiff, an employee at will, could not assert a cause of action against her employer as this State neither recognizes a tort of wrongful discharge nor requires good faith in an at-will employment relationship. Additionally, the court dismissed the complaint as against the individual defendants finding that the complaint did not adequately set forth wrongful conduct that states a cause of action for tortious interference with employment.

In January, 2007, the plaintiff commenced this action pursuant to CPLR 205. The complaint alleges causes of action for tortious interference with employment against the plaintiff's former co-employees defendants John Robbins, Phil Gallo and Lori Bryant-Chin. The plaintiff has moved pursuant to CPLR 3106(a) for an order granting her priority of depositions. The defendants cross-moved to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

Addressing the cross-motion first, the defendants argue that the complaint must be dismissed as New York does not recognize a cause of action for tortious interference with employment. In Ingle v. Glamore Motor Sales (73 NY2d 183[1989]), the Court of Appeals held that because there is no cause of action in tort for wrongful discharge of an at will employee, a plaintiff could not circumvent this rule and sue his employer by recasting his cause of action in the garb of a tortious interference with employment (73 NY2d 183, 189). Contrary to the defendant's contentions, however, Ingle did not address the situation of a plaintiff asserting a cause of action for tortious interference with employment against co-employees.

As set forth in this court's prior order, in order to adequately set forth a claim for tortious interference with employment against co-employees with regard to allegations concerning an at-will employment, the plaintiff has the high burden of asserting that the defendants used wrongful [*2]means, such as fraud, misrepresentation or threats to effect the termination of employment (see, Lockheed Martin Corp. v. Aatlas Commerce Inc., 283 AD2d 801, 803 [3d Dept. 2001]). This rule was set forth by the Third Department in Murray v. SYSCO (273 AD2d 760 [3d Dept. 2000]), subsequent to the Court of Appeals decision in Ingle. The Third Department did not cite to Ingle, but rather cited to Guard-Life Corp. v. Parker Hardware Mfg. Corp. (50 NY2d 183, 194 [1980]), a case involving a terminable at will contract for merchandise.

The tortious interference with employment rule set forth by the Third Department has not be utilized by the Second Department. However, although not specifically recognizing the validity of such cause of action, the Second Department in Negron v. JP Morgan Chase (14 AD3d 673 [2d Dept. 2005]) held that a complaint asserting a cause of action of tortious interference against individual defendants should be dismissed as it consisted only of bare legal conclusions and factual allegations contradicted by the record. Since the Second Department did not state that there was no such cause of action, the plaintiff's argument that the Second Department does recognize the validity of such cause of action has merit.

This court agrees with the defendants that their position has support in cases from the First Department. In Lobel v. Maimonides Medical Center,(___AD3d___, 2007 WL 1052823 [1st Dept. Aptil 10, 2007]), Thomas v. Guardian Life Ins. Co. (12 AD3d 285 [1st Dept. 2004]) and Thawley v. Turtell (289 AD2d 169 [1st Dept.]), the court held that as an at-will employee, plaintiff can have no cause of action based on a co-employee's alleged tortious interference with her employment. The First Department cited to Guard-Life Corp. v. Parker Hardware Mfg. Corp. (50 NY2d 183, supra), in support of this holding.

However, in other cases the First Department has recognized a claim for tortious interference with employment for an at-will employee. In Hoesten v. Best (34 AD3d 143 [1st Dept. 2006]), the First Department, also citing Guard-Life Corp. v. Parker Hardware Mfg. Corp. (50 NY2d 183, supra), held that "[a]s an at-will employee with no written contract, plaintiff could only succeed on his tortious interference [with employment] claim if he established that [the co-employee defendant] acted solely to harm him or used wrongful means to achieve the interference". Additionally, in Marino v. Vunk (___AD3d___, 2007 WL 1120457 [1st Dept. April 17, 2007]), the First Department held that "where . . . the individual defendants are co-employees of plaintiff, in order for a claim of tortious interference with an employment relationship to lie, it must be alleged that defendant co-employees acted outside the scope of their authority". Thus, it appears that there is a split in the First Department on this issue.

Although this court finds that both parties' have presented case law to support their positions and that further clarification from the Court of Appeals would be of great assistance, the defendants' motion must be denied. On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must give the plaintiff the benefit of every possible inference in determining whether the facts as alleged fit within any cognizable legal theory (Sokoloff v. Harriman Estates Dev. Corp. (96 NY2d 409, 414 [2001]; Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). As there is no holding from the Second Department that an at-will employee cannot allege a cause of action for tortious interference with employment against her co-employees, and there are cases from both the First and Third Departments recognizing the validity of such cause of action, this court finds that the defendants have not sustained their burden in proving that the complaint fails to state a cause of action. The court notes that the [*3]defendants have not alleged that the wrongful conduct on the part of the individual defendants set forth in the complaint does not support a cause of action for tortious interference with employment (compare, Lockhead Martin Corp. v. Aatlas Commerce Inc., 283 AD2d 801, supra).

The plaintiff's motion for an order granting her priority of depositions must be denied. Under CPLR 3106(a), "as a general rule, in the absence of special circumstances, priority of examination belongs to the defendant . . ." The order of normal priority may be reversed only upon plaintiff's showing of special circumstances, such as the existence of a fiduciary relationship between the parties or where the facts sought to be elicited are peculiarly within the knowledge of the defendant or the information is within the defendant's custody (see, Serio v. Rhulen, 29 AD3d 1195 [1st Dept. 2006]; NOPA Realty Corp. v. Central Caterers, Inc., 91 AD2d 991 [2d Dept. 1983]). Here, the plaintiff has not established either the existence of a fiduciary relationship or that the pertinent facts were wholly within the knowledge of the defendants (see, Preferred Equities Corp. v. Ziegelman, 155 AD2d 424 [2d Dept. 1989]).

Accordingly, it is

ORDERED that the plaintiff's motion for an order granting her priority of depositions is denied; and it is further

ORDERED that the defendants' cross-motion to dismiss the complaint pursuant to CPLR 3211(a)(7) is denied; and it is further

ORDERED that the parties are directed to appear for a Preliminary Conference on May 23, 2007, at 9:30 a.m.

E N T E R,

Dated: May 4, 2007

J.S.C.